Constructive Dismissal

An express dismissal happens where your employer terminates your employment contract with or without notice.  If your employer does not expressly dismiss you, but is in serious breach of contract which makes  you feel you have no choice but to resign, you may be able to argue that this is a constructive dismissal.

The types of actions or conditions at work that amount to a fundamental breach of contract include significant changes to your pay, significant detrimental changes to your terms and conditions without your agreement and serious bullying or harassment.  Constructive dismissal is a high risk and difficult claim to bring and varies depend on individual circumstances.

Please see our article on the law when an employer changes your contract before resigning as there may be other options available to you.

Constructive Unfair Dismissal – 2 years service requirement

In most circumstances, you can only bring a claim at the Employment Tribunal for constructive unfair dismissal if you have been employed by your employer for at least 2 years. There is an exception if you have been discriminated against, or if your employer is imposing a change to your contract because you have exercised a statutory right. In that case, you can bring a claim against your employer regardless of how long you have worked for them, because the dismissal would be ‘automatically unfair’. You should get legal advice before resigning, as these claims are very difficult to prove.

Fundamental Breach of Contract

If a significant change to your contract is being required or imposed, for example, if you were contracted to work from 9am to 5pm and your employer then told you had to work nights, or, you used to be a sales rep for the Midlands and now you are being asked to cover the North West region, and your contract does not allow for this, then if after you have considered all other options you have no other choice, the last resort may be that you feel you need to resign and claim that you had been forced to do so.

In other words, your employer’s breach of contract left you with no choice except to resign. In legal terms this is called a constructive dismissal. Please see our page on Imposed Terms.

What do I need to prove?

For you to be able to say that the employer’s actions left you no choice but to resign, it is not enough to show that your employer behaved unreasonably – you have to show that, objectively, your employer’s conduct has destroyed or seriously damaged your employment relationship and so amounted to a fundamental breach of contract.

You must also show that it was the employer’s actions which caused you to resign, or was one of the main causal factors (not some other reason such as the fact that you have been offered another job).

If a tribunal is satisfied that you had no choice but to resign because of your employer’s actions, it will then go on to consider whether the dismissal was unfair.

You may also have been constructively dismissed if your employer does something so wrong that you can consider the contract over.  Employment contracts have implied terms, such as a duty of trust and confidence and a duty not to discriminate, so there does not have to be an explicit term in the contract forbidding the behaviour.

Other Claims

Grounds for constructive dismissal may include discrimination, failure to address excessive workloads, bullying and harassment.   You may bring a constructive dismissal claim as a result of a one-off incident, or a repeated course of conduct by your employer that amounts to a breach to such an extent that you feel it is no longer possible to continue in your current employment.

Resigning to claim Constructive Dismissal is High Risk

If the contractual change is so serious that it is a fundamental breach and you feel you have no choice but to resign, we recommend you should seek legal advice urgently before resigning.

We would not recommend resigning, but rather to continue to work under protest and seek to reach agreement whilst protecting your employment wherever possible. This is because in constructive dismissal, it is for you as the employee to prove that your employer’s breach of contract was so serious that you considered the contract was terminated by your employer. There is no guarantee the Tribunal will agree with you. Having said that, continuing to work for too long (even under protest) can undermine your argument that the breach is so serious that you had no choice but to resign.

What to say when you have no choice but to end your employment

In constructive dismissal, if you decide to take this route, you must state that your employers breach of contract was so serious that you have no choice but to leave, you can no longer work for your employer and state that you have been forced to resign.

You should set out the background to what has happened and why this was such a fundamental breach of contract.

Financial Warning

From a financial point of view, as soon as you resign to claim constructive dismissal your employment relationship and your contract is over. You would not ordinarily work your notice and you would therefore no longer be entitled to pay or benefits under the contract. You instead would need to bring a claim against your employer to recover any monies you believe you are owed e.g. your notice pay and any holiday pay.

Timing is key: if you choose to resign because you really feel you have no choice it is important that you do not delay, or this may be taken as evidence that you have agreed to or waived the breach of contract; delay can undermine your argument that it is so serious a breach. If you decide this is your only option, when you terminate your contract to claim constructive unfair dismissal, you must make it clear (preferably in writing) that you had to resign and consider the contract to have been terminated immediately because of the employers actions (rather than resigning in accordance with the contract) to help show it was a constructive dismissal.

Where possible, you should always seek advice before resigning and it can be difficult to prove you have been constructively dismissed.

If you have been constructively dismissed, then you may be able to make a claim for wrongful dismissal (unpaid notice pay) and unfair dismissal.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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